Since we were in such desperate need of yet another take on Harriet Miers...

...here's mine, to be filed firmly in the worth-what-you-paid-for-it-file.

Major caveat: Please note that I am in Kazakhstan at the moment with a very slow connection, and therefore am working from memory of what I’ve read on the blogosphere recently. I haven’t been able to do much fresh research and can’t do much in the way of links. Therefore this post is likely to prove nothing at all about Harriet Miers and a great deal indeed about how important it is to do your research and follow your own links. Ah, well, c’ést la vie, n’est-ce pas? By all means point out stupidities in the comments, but please be relatively indulgent about them. (I’m feeling French and the moment, which is why I have set out to create an illusion of déjà vu. It’s not the real déjà vu, because the real déjà vu would be an illusion of having experienced before what you're experiencing now, and in this case you’ve actually experienced it before, so that feeling of, “I’m having déjà vu,” is an illusion. You see? Um...I had a topic at one point, but I seem to have mislaid it...ah, yes, Maddening Miers.)

As I look around at the conservative reaction to Bush’s nomination of Miers, it strikes me that how you react to the nomination has a lot to do with two basic questions.

1. Do you trust Dubya? And specifically, do you trust his vision of what government ought to be?

2. What do you think has been, since the mid-twentieth century, the fundamental problem with the Supreme Court? ...continue reading...

I think the Shrub was caught off guard precisely because he did not realize to what extent he long ago forfeited the trust of many conservatives when it comes to domestic policy, and because he didn’t realize that for many conservatives (a minority, but a vocal one) the fundamental problem of the Supreme Court is not “they don’t vote for our side.”

I should say that it seems like ever since I moved to Texas I’ve been voting against Bush for something pretty much every four years. The fact that in 2004 I for the first time in my life blackened the circle next to the Shrub’s name, is a sign of just what a terrible field of candidates appeared on the ballot in 2004 – a sign of that, and of the fact that there’s one thing I think he’s got right, and that’s the War on Islamofascism (even though he has taken a long time to admit that Islamofascism is what we’re fighting), including as a part of that global war the local war in Iraq. But on domestic policy, ay caramba! That “No Child Left Behind” thing...oh, Lordy, don’t get me started. Domestic spending? Immigration policy? The Department of Homeland Insecurity? 200 billion dollars to rebuild a city that (as several folks have observed, though I don’t have any links handy) seems to be the real-life incarnation of the Swamp Castle bit from Monty Python and the Holy Grail? [shaking head mournfully]

But then, I’m not a Republican, after all. I’m one of a relatively numerous group of libertarian types who looks at his choice between Democrats and Republicans, and generally winds up holding his nose and pulling the Republican lever. Bush is not my guy; he has never been my guy; and I have known all along that I’m not part of his base and not the kind of voter he cares about or owes anything to. So when Bush does something with which I disagree, I’m disgusted, but I don’t feel betrayed.

Lots of people, however, think of themselves as Republicans, and they’ve donated time and money and blood and sweat and tears to the Republican Party. And they genuinely believe in the sorts of things that were in the Contract with America – smaller, more decentralized government, for example. Elimination (or at least reduction) of pork spending. Strong, well-defended borders with a sound immigration policy that is effectively enforced. Reasonable scope in public life for the devoutly religious, and a government that is not hostile to religion or the expression thereof. A legal system that respects traditional morality and that supports, rather than attacks, the traditional nuclear family. Welfare programs that, if they are run by the government at all, at least actually do more good than harm. A judiciary that at every level rules based on the law rather than on the personal political agendas of whichever judges happen to have jurisdiction. An end to abortion on demand. Schools that are responsive to, and under the control of, and supportive of the values of, the parents who are depending on those schools to educate those children.

And a whole bunch of those people have worked very hard to give Republicans control of the federal government. What did they get? Well, they got Dubya for President.

The problem is that Dubya is in some respects more of a Democrat than a Republican, in particular in three respects. (a) We could hardly have more illegal immigration if Dubya had personally issued engraved invitations to every single one of the Mexican poor; the President clearly has no interest whatsoever in controlling our southern border. (b) This President never saw a problem that he didn’t want to throw gobs of federal tax money at. He is, like no previous Chief Executive, the Prodigal President. We continue to await his first veto. (c) This President seems to think the best response to any problem is likely to be, “Let the federal government take over the job;” no Democrat could possible detest the idea of interpreting the Commerce Clause as though it actually means what it says, than does Dubya. (In fairness, as I think Mark Steyn pointed out, it’s not like you didn’t know when you voted for him that Dubya wanted the feds to run the schools and the illegals to run – or swim – the Mexican border; so those of us who voted for him can complain only on the grounds that we weren’t given any real choice.)

Michelle Malkin is blasting President Bush over Harriet Miers, but it’s in large part because she was already furious with the President over Julie Myers. She’s passionate about immigration and Bush doesn’t give a damn about it; and Michelle has just been getting madder and madder as the years roll by. And other conservatives are furious about other things, the spending, for example.

But every time Bush has acted like a Democrat rather than like a Republican, the outraged among the conservatives have taken a deep breath and said, “Okay, but we have to hang in there, because this guy is our best chance at getting the Supreme Court problems fixed.” And as the years have gone by, many conservatives have trusted Bush less and less, but they’ve still hung in there waiting for the nomination of Janice Brown or her equivalent.

And when the big day finally comes, Dubya produces a nominee that nobody knows anything about – other than that she’s a close buddy of Dubya and thinks he’s the most brilliant man she’s ever met – and he says, “Trust me on this one.” And a sizable number of conservatives instinctively react with, “Why the hell should we trust you on something this important?” His domestic record, you see, does not inspire confidence; and his entire justification for the nomination depends on conservatives’ confidence in his judgment. If Bush wanted the Right to trust him on a cloak-and-dagger Supreme Court choice, then he shouldn’t have spent the last five years acting like a Democrat on things like spending, education and immigration.

Bush wants conservatives to trust him that Miers will vote on every issue the way Dubya himself would vote. He doesn’t understand that that’s exactly what a bunch of us are afraid of. If we were getting Janice Brown, we would know that we were getting a candidate whose loyalty is to the Constitution and who would do as good a job as you could hope for of interpreting the Constitution based on what it says rather than on the agenda of the patron who nominated her. But if there’s one thing we can be sure of about Miers, well, there, isn’t, of course, anything at all that we can be sure of about Miers. But the thing we can come closest to being sure about, is that she will vote the way Bush would have wanted more reliably than any other person on the planet would have. We don’t know how loyal Miers is to the Constitution, but we bloody well know how loyal she is to Bush. And we know that the guy she's loyal to, thinks Gonzales would make a great Supreme Court judge. We know this -- and we shudder.

I’ll tell you something else that Dubya doesn’t understand. A whole bunch of us are deeply opposed to welfare and other forms of do-gooder government, precisely because we care about the poor and we are convinced that government “help” hurts people more than it helps them. When the Left accuses such conservatives of lacking “compassion,” the Left implicitly begs the question of whether government help is really helpful. Then here comes Bush, carrying on about how he’s a “compassionate conservative,” and it turns out that what he means is that he’s conservative on things like national defense and gay marriage, but when it comes to throwing government money at social problems he’s pretty much in favor of “helping” people. I don’t think Bush is aware of the extent to which his use of the term “compassionate conservative” legitimizes the Left’s spin on “compassionate” as meaning “somebody who thinks the best way to help people is through the government.” And therefore I don’t think he understands that people on the Right who are genuinely compassionate, yet genuinely opposed to doing things like spending 200 billion dollars to rebuild Swamp Castle, are implicitly slandered by, and thus offended by, the combination of his terminology and his policies. (Having written this, I see that Mark Steyn is making much the same point, which heartens me immensely.)

At any rate, Bush overestimated how much trust Republicans have in him, because he underestimates how much resentment many conservatives have suppressed over the last five years for the sake of this day that has now arrived. He wants to appeal to conservatives’ trust in him. What he didn’t realize is that many conservatives have no trust left in him, and that this was a pick that needed to justify their trust, not place immense demands on it.

From a rational basis, I think if you step back and look at the big picture, you can pretty much guarantee that Harriet Miers is likely to give the Religious Right what it wants on The Big One (Roe v. Wade) and on the various church-and-state issues that are likely to arise. And if you like Dubya’s approach to suspension of personal rights in the War on Terror, Harriet will go to bat for you. If you like Dubya’s Happy-Federalizer mentality and think the Commerce Clause was a bad mistake that should be studiously ignored in all times, places and contexts, well, I doubt Harriet will upset el patron by taking the Commerce Clause seriously. On the other hand, when Miers takes the oath we will have at least one Justice who believes that the Second Amendment actually applies to American citizens. In short if a Robo-Dubya is what you’re after then you’re safer with Harriet Miers than with anybody else you can imagine, in my opinion.

Not that you’re perfectly safe, of course, because Presidents can certainly be wrong about what people will do when they hit the Supreme Court, and I would imagine that Harriet will surprise him occasionally. But she’ll probably disappoint Bush – by ruling against Bush in favor of the Consitution – less often than any other person in America would have been likely to. This woman was not picked because of her loyalty to the Constitution. She was chosen because of her loyalty to Bush and his vision of what the Constitution ought to be taken to mean – at least, that is, if we can trust the assurances of the President’s own spin doctors, with their talk of how loyalty is the dominant virtue in Texas. Which, by the way, just proves that they don’t know the difference between “Texas” and “the Bush coterie” – it’s b.s. that Texans in general value loyalty, even the non-sycophantic version, more highly than we value other virtues like honesty, and insofar as there is in fact anything particularly Texan about the loyalty-driven relationship, that's because the vote-delivering, politically corrosive culture of el patron has been imported into Hispanic South Texas from that model of good government, Mexico. That model is, however, precisely the model that the Bush political empire has long followed, and those of us who know what the end results of the patronage model usually are, are pretty uncomfortable with Clan Bush's extension of that model into the White House and now, if he can manage it, into the Supreme Court.

Thus the more Bush reassures the Dobson crowd that Harriet knows how she’s supposed to vote and will deliver the goods, the more he nauseates those of us who don’t think Supreme Court justices ought to be in the business of delivering votes a sus patrones, and the more he worries those of us who think that a strict interpretation of the Constitution would cause and ought to cause a heckuva lot more restrictions on the federal government than Bush would ever willingly tolerate, and therefore more than Harriet is likely to go along with.

Think about it: one of Dubya’s striking characteristics is the degree to which he has analyzed the mistakes his father made, and has determined not to repeat them. Quick, name Bush the Elder’s biggest mistakes, the mistakes that ultimately cost him conservative support and doomed his reelection bid. Wouldn’t you come up with a list that included, say...

(a) Raising taxes after the “Read my lips” b.s. (And when’s the last time you saw Dubya agree to raise taxes? Spending, sure. Taxes...nope.)

(b) Letting Saddam stay in power when he had Saddam at his mercy, primarily because the U.N. didn’t want Saddam deposed. (No further comment necessary, on either Saddam or on deference to the demands of the U.N.)

(c) David Souter. And what was Bush Senior’s mistake there? Precisely this: he let himself be talked into appointing to the Supreme Court a man he didn’t really know anything about.

When I look at Dubya’s first five years, it seems to me that the two things he cares most about, as far as his ultimate legacy, are the War on Islamofascism and the reformation of the judiciary – and specifically, the overturning of Roe v. Wade. I understand why his pick of Miers looks like blatant cronyism, and you can tell from what I've said already that I think patronage is definitely playing a role, just because Bush thinks and operates like a patron. But can you not see that Bush is determined not to repeat his father’s mistake? (I give full credit for this point, by the way, to my extremely astute wife.) This is, for Bush, The Pick. He wants somebody that he knows will overturn Roe v. Wade, yet he can’t come out and ask a candidate how they’ll vote. And he’s not about to trust somebody else’s judgment, the way his father trusted the judgment of John Sununu. But that means, in order for Bush to have somebody that he, without depending on others’ opinions, knows will come through for the conservatives despite not having asked them specifically, he practically has to nominate somebody from his inner circle.

That is why Bush has nominated Harriet Miers. He has nominated her because he knows, better than any of the rest of us can possibly know about any possible candidate, that she will deliver the vote the Right has waited for all these years. If the Democrats want to preserve Roe v. Wade then they had better find some way – any way – to keep this woman off the Supreme Court. Harry Reid was insane to put her name on his list of acceptable nominees.

But does that mean that, if you’re a conserative who wants to see Roe v. Wade overturned, you should support the nomination? Surprisingly, it ain’t necessarily so. It sort of depends: are you in it just to get the votes you want?

That’s the other division in the conservative camp. There’s the division between those who trust Bush and those who don’t, and then there’s this division, which itself actually comes in two variations.

A Supreme Court judge who reliably delivers for the Right is not the same thing as a Supreme Court judge who faithfully interprets the Constitution. If the Right engages in Court-stuffing whenever it gets the chance, then what grounds do they leave themselves to complain when the pendulum swings back and it’s the Left that gets to go back to being in charge of the Court-stuffing? The Right, or at least many of us, wanted a candidate who could make it clear that he/she was motivated by the dictates of the Constitution, not by partisanship. That involves eloquence and clarity of thought and expression – and it is absolutely sabatoged if the pick is from the very beginning patently a partisan pick whose leading characteristic is loyalty to the political patron responsible for her elevation. It’s not just the decision you get to, it’s how you get there. Miers starts off with such a huge handicap, thanks to the way in which Bush has approached this – and the handicap is imposed by Bush, not by the Illin’ – that her opinions would need to be near-Solomonic for her to recover. To the evangelical base that just cares that the results come out the way they want, and have no long-term vision of changing the process as well as the votes, that’s no biggie. But to those who care about the integrity of the court, it’s a serious blow. A Republican who says, “This woman is a good choice because she will vote the way I want her to,” is just as much of an S.O.B. as is a Democrat who says, “This woman is a good choice because she will vote the way I want her to.”

In other words, there are conservatives who care only about results, and they (assuming they don’t object to very much of Dubya’s domestic policy) are happy with the idea that Harriet will deliver reliably. But there are other conservatives who care very much about process, and many of those are majorly Illin’.

What the Democrats’ politicization of the Supreme Court has done – and that politicization is in fact almost entirely the Democrats’ responsibility, going back to FDR, getting worse with the Courts of Warren and Brennan, and then going nuclear with Robert Bork – is to create a perverse atmosphere in which, if you are conservative, you can get on the Supreme Court only if you are either too incurious to have formed an opinion about Roe v. Wade, or else too uncandid to have allowed anybody to find out what your opinion is. Indeed, if you have been sufficiently forthcoming in your opinions to have made it possible to deduce from what you’ve said on other topics that you would overrule Roe v. Wade, you have been, for the past few decades, toast. Roe v. Wade is a bad decision at every level other than in its result (and even that is only considered a good result by people who favor abortion on demand with no restrictions whatsoever), and it has completely taken over and poisoned the confirmation process. Do you think judges have to consider themselves bound by what the people have actually ratified, rather than by what the judges think the people would have ratified had the people been blessed with the intelligence and moral vision that God has graciously bestowed upon the judges themselves? If so, and if you say so where a Democratic Senator can hear you, that pretty much makes you an official Threat to Roe v. Wade. And the Constitution has pretty much stopped being about anything but Roe v. Wade, when it comes to confirmation – which fact is, in itself, ample evidence that Roe v. Wade was a terrible decision. That one decision now trumps any other possible question about the Constitution – separation of powers, separation of church and state, Commerce Clause, Second Amendment – the only part of the Constitution that even exists any more, at confirmation time, is the part of the Constitution...well, the imaginary part, the one that guarantees abortion on demand and removes it entirely from the whole sphere of the democratic process.

For years Janice Brown – who is a spectacularly competent judge by any standard, and who is an admirable person in every respect except in disagreeing with the political platform of the relatively extreme Left – had absolutely no chance whatsoever of being appointed to the federal judiciary, much less the Supreme Court, because everyone knew the Democrats in the Senate would blackball her, not because she wasn’t qualified, but simply because they knew she wouldn’t toe their party line. And this dynamic, by which a premium is placed on silence, and by which the opinions of the intelligent and thoughtful are in essence censured on pain of being blackballed, is deeply, deeply pernicious and damaging to the public weal and discourse.

In other words, what many of us want isn’t just for Roe v. Wade to be overturned. We want the censorship abolished; we want freedom of speech to be restored to thoughtful legal minds throughout the judiciary; we want the poisonous boil lanced. The President’s nomination of Miers is a giant stride toward the overturning of Roe v. Wade. But as for the censorship, this nomination ratifies it, rather than abolishing it or even challenging it. Think of it: the President actually claims that he and Miers have never discussed whether Roe v. Wade ought to be overturned. Now, either he’s lying through his teeth, or else for the last decade the President has had a rule never to discuss Roe v. Wade with anybody whom he might one day want to appoint to the judiciary. If the latter...good God, has it really come to that? Can we really have sunk to the point where there is overwhelming pressure on our leaders not even to discuss with their advisors one of the most critical and divisive controversies of our time?

There are a lot of people who want Roe v. Wade overturned because they hate abortion. But there are also many of us who want Roe v. Wade overturned (including some of us who think abortion ought to be legal) because we hate what it has done to the political atmosphere, and in particular to the judiciary and its confirmation processes. We all know perfectly well that for the last twenty years the confirmation or lack thereof of Supreme Court nominees has come down simply to these two questions: will they overturn Roe v. Wade? And if so, can the Democrats find a way to keep them off the court?

In nominating Miers, Bush attacks abortion, but confirms the censorship. Those who only care about getting rid of abortion – and who still trust Bush – are by and large good with the nomination, and they will be happy with Miers’s votes should she in the end get confirmed. But those who care about the censorship – or who do not trust Bush – are just not going to be happy with this pick, and will still regret the pick even if the day comes when Miers is the fifth vote to overthrow Roe v. Wade. For there were available nominees who have refused to bow to the censorship, and whose public comments make it clear that they would be that fifth vote almost as surely as Miers would be – but without the appearance of shameless partisanship that the nomination of the Loyal Robo-Dubya creates. And those who care about the censorship in particular and the process as a whole, not merely the vote itself – well, in America they’re pretty much going to be always a minority, because Americans are notoriously results-oriented. But the minority who do care about the process as well as the result, will always wish the President had chosen somebody whose nomination would attack the Democrats on both fronts, instead of cravenly ceding the one to ensure the other.

Unless, that is, they think it’s the Republican Senate that would have been too cravenly spineless to have supported such a nomination. But in that case, it won’t be Dubya they’re mad at.